Citation Nr: 21077344 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 17-34 210 DATE: December 29, 2021 ORDER Entitlement to an evaluation in excess of 30 percent for traumatic bifrontal headaches with residual scar is denied. REMANDED Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT Throughout the period on appeal, the Veteran's traumatic bifrontal headaches with residual scar were manifested by frequent prostrating attacks and prolonged attacks and a residual scar that was not painful, unstable, a total area greater than 39 square centimeters, which did not result in functional impairment; at no time during the period on appeal were the Veteran's traumatic bifrontal headaches manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSION OF LAW The criteria for an evaluation in excess of 30 percent for traumatic bifrontal headaches with residual scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from April 1980 to January 1982. This matter comes before the Board of Veterans' Appeals (Board) from a July 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2021, the Veteran testified at a virtual hearing before the undersigned. A transcript of the hearing is of record. 1. Entitlement to an evaluation in excess of 30 percent for traumatic bifrontal headaches with residual scar is denied. The Veteran is currently in receipt of a 30 percent disability rating for his traumatic bifrontal headaches, pursuant to Diagnostic Code (DC) 8100. The Veteran contends that he is entitled to a higher disability rating because his service-connected headaches are more severe than that which is reflected in his currently assigned rating. Under Diagnostic Code 8100, a 10 percent rating is assigned for characteristic prostrating attacks averaging one in two months over the last several months. The next higher evaluation of 30 percent requires characteristic prostrating attacks occurring on an average once a month over the last several months. A maximum 50 percent rating is assigned when there are very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. A January 2016 VA examination notes a diagnosis of traumatic bifrontal headaches and cervicogenic occipital headaches. The Veteran described headaches in the bilateral frontal and bilateral occipital areas that occurred four to five time per day and lasted approximately 30 minutes. The Veteran indicated that he took Motrin as needed for his headaches. The examination notes that the Veteran's headache pain was manifested by pulsating or throbbing head pain on both sides of his head, without non-headache symptoms; his headaches lasted less than one day. The examiner indicated that the Veteran had prostrating attacks of non-migraine headache pain that occurred more frequently than once per month; he also had very frequent and prolonged attacks of non-migraine headache pain. No other pertinent findings were noted. The examiner indicated that the Veteran's headache disorder impacted his ability to work in that the Veteran experienced impaired concentration and cognitive acuity during headaches. The Veteran was afforded another VA examination in May 2016, which indicates that the Veteran reported experiencing three to four bifrontal headaches per month, and he treated his headaches with Advil. The examiner indicated that the Veteran had pulsating or throbbing head pain on both sides of the head, with sensitivity to light, and his headaches lasted less than one day. The examination notes that the Veteran had prostrating attacks of non-migraine headache pain once every month and also noted that the Veteran had very frequent prostrating and prolonged attacks of non-migraine headache. The examiner indicated that the Veteran's headaches resulted in impaired concentration and cognitive acuity during headaches. The examination also indicates that the Veteran had an associated scar that was not painful, unstable, or had a total area greater than 39 square centimeters. During the period on appeal, medical treatment records are silent for any complaints or treatment for headaches or any associated symptoms until a January 2018 record noting that the Veteran had an intolerable headache related to medication used to treat an unrelated condition. A January 2020 mental health record indicates that the Veteran was seeking mental health treatment for headaches and a desire to return to work. An additional January 2020 mental health record notes that the Veteran reported experiencing back pain for decades and migraines for years; the back pain impacted his work. At his August 2021 Board hearing, the Veteran testified that he still experienced headaches, which he self-treated with over-the-counter medications and rest, although he indicated that he had difficulty sleeping due the head pain. He reported that he preferred resting in dark rooms with less noise. The Veteran noted that he was currently working as a security officer and had been in this type of work for the last four years. He described his job as allowing him to primarily sit and monitor people. The Veteran testified that he taken time off for his headaches in the past, noting one occasion in which he was off up to three months; he also indicated that sometimes he would return and "and maybe they have a problem" and he would take another couple of weeks off. He indicated that his work was contractual, and he had worked for several companies over the last four years, noting that sometimes his assignment ended, but he never had any adverse action taken against him for his headache disorder. The Veteran reported that he primarily worked alone, and he was able to take the time he needed, sometimes sitting in his car, at work when he had a headache. He indicated that he had a scar associated with his headaches, which was still visible but did not hurt. Specifically, while he described pain behind his eyes, he indicated that it was associated with his headaches. After a review of the evidence, the Board finds that a rating in excess of 30 percent for his service-connected headache disorder is not warranted at any time during the period on appeal. In this regard, the Board notes that although the evidence reflects that the Veteran experienced very frequent prostrating and prolonged attacks of non-migraine headache, the Court has held that the rating criteria for a 50 percent disability rating under Diagnostic Code 8100 are conjunctive, meaning that establishing entitlement to a 50 percent disability rating requires evidence that a claimant's migraine attacks are (1) very frequent, (2) completely prostrating and prolonged, and (3) "productive of severe economic inadaptability." Johnson v. Wilkie, 30 Vet. App. 245, 253 (2018). If one of these elements is missing, a claimant is not entitled to a 50 percent disability rating. See Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007) (citing Watson v. Dep't of the Navy, 262 F.3d 1292, 1299 (Fed. Cir. 2001) (noting that inclusion of conjunctive "and" clearly indicates that all three criteria in 5 C.F.R. §§ 831.902 and 842.802 must be demonstrated)). Here, the Board does not find that the evidence reflects that the Veteran's headache disorder more closely approximates "completely prostrating" attacks of headache pain "productive of severe economic inadaptability". In this regard, the Board notes that the phrase "completely prostrating" is defined as "completely lacking in vitality or will" and "powerless to rise." Johnson v. Wilkie, 30 Vet. App. 245 (2018). This phrase means the headaches "must render the veteran entirely powerless." Id. at 253. This differs from "characteristic prostrating" (which is required for a 30 percent rating), which means that the migraine attacks "typically produce powerlessness or a lack of vitality." Additionally, the Court has stated that the term "productive of severe economic inadaptability" is not synonymous with being completely unable to work and that the phrase "productive of" could be read to mean either "producing" or "capable of producing" economic inadaptability. See Pierce v. Principi, 18 Vet. App. 440, 446-47 (2004). Based on the evidence of record, the Board finds that the criteria for a 50 percent rating are not met. The evidence does not show that the Veteran has had headaches of such frequency and severity to warrant the maximum rating of 50 percent during the appeal period. As noted above, the evidence reflects that the Veteran, while experiencing frequent headaches, still went to work, taking breaks as needed and sometimes resting in his car. He has not otherwise described any functional impairment associated with his headaches, to include any problems with concentration or cognitive acuity; nor has he provided any indication how often his headache pain was of such severity that he took breaks at work. Furthermore, medical treatment records are largely silent for any complaints or treatment related to his headache disorder, and no examiner or clinician found that the Veteran's headaches, while frequent, were either completely prostrating or were of the severity to have 'produc[ed]' or were 'capable of producing' severe economic inadaptability. Pierce, 18 Vet. App. 440 (2004)). Thus, the Board finds that, while the Veteran experienced frequent prostrating attacks of headache pain, there is nothing to indicate that these attacks were completely prostrating in nature and productive or capable of producing severe economic inadaptability. The Board has considered the Veteran's testimony that he missed work due to his headaches. In this regard, the Board notes that the Veteran's testimony on this point is a little unclear as the Veteran clearly indicates that he took time off work due to his headaches, but he appears to suggest that his headaches, at least on one occasion, resulted in a prolonged absence from work. However, after a review of the record and the Veteran's own description of his time away from work, the Board finds that, to the extent that the Veteran has characterized any prolonged time away from work as being due to his headache disorder, this characterization is inconsistent with the remaining evidence and therefore not credible evidence in this regard. Specifically, when asked during his hearing, the Veteran indicated that his work was contractual in nature and sometimes his employment was terminated simply because his assignment ended. He also stated at his Board hearing that sometimes he would return and "and maybe they have a problem" and he would take another couple of weeks off, suggesting that his time off was due to factors other than his headache disorder. Furthermore, a review of the Veteran's VA treatment records reveals that the Veteran experienced a period of unemployment in early 2017. In September 2017, he indicated that he had obtained part-time employment as a security guard on an on call basis; he indicated that he hoped that his position would become full time after the 90-day probationary period. An October 2017 record notes that the Veteran was still on call and wished to have a more permanent position with the security company. A November 2017 record notes that the Veteran was no longer working with the security company; however, he was awaiting a new security job working as a guard securing movie sets. A January 2018 record notes that the Veteran was employed as a security guard, and subsequent records through August 2018 reflect that he maintained full time employment and was happy with the company. There is no indication in any of these records that the Veteran experienced any difficulties with headaches during this period, except as it related to a change in medications for an unrelated condition, or that his headaches otherwise caused functional impairment, impacted his employment status, or resulted in any absences. Thus, the Board finds that the evidence tends to suggest that any breaks or gaps in the Veteran's employment was due to the contractual nature of his work, and not due to his service-connected headache disorder. The Board has considered the argument set forth by the Veteran's representative at his Board hearing that the Veteran meets the criteria for a 50 percent evaluation, despite fact that the examination does not indicate that his headaches were productive of severe economic inadaptability, because his headaches impact his ability to work by causing problems with concentration and cognitive acuity. The Board has considered the functional impairment noted in these VA examination reports; however, no VA examiner has characterized the Veteran's headaches as very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability, even when considering his symptoms of impaired concentration and cognitive acuity, and the Veteran has not provided any probative evidence otherwise. Indeed, as noted above, there is minimal documentation regarding headaches, or the associated symptoms, noted within the Veteran's medical treatment records during the period on appeal. Thus, to the extent that the Veteran alleges greater severity, the Board finds that the probative value of his assertions is outweighed by the medical evidence of record. While the Board acknowledges that the evidence reflects that the Veteran experienced very frequent prostrating and prolonged attacks of non-migraine headaches, the rating criteria for DC 8100 link the ratings for migraine headaches to two elements: severity and frequency. It is not sufficient to demonstrate the existence of a particular frequency of headaches; the headaches must be of a specific prostrating character. There is nothing to suggest that each time he experienced a headache, it was of such severity as to render him "completely lacking in vitality or will" and "powerless to rise", which is defined by the words "completely prostrating." Furthermore, while the Veteran noted his preference for quiet and dark room conditions during headaches, there is no indication in the available records, nor has the Veteran otherwise described, as to how often he utilized this dark, quiet conditions for treatment of his headaches. From the available evidence, the best the Board can discern, the Veteran only "sometimes" needed to take breaks away from work to sit in his car during a headache. Thus, while the Board acknowledges that the Veteran may have very frequent prostrating and prolonged attacks of non-migraine headache, there is simply no evidence of record to indicate that his headaches are completely prostrating in nature and have produced or are capable of producing severe economic inadaptability. Finally, the Board has also considered whether a separate rating is warranted for the Veteran's associated scar; however, the evidence does not demonstrate that the scar was unstable, painful, or had a total area equal to or greater than 39 square centimeters; nor is there any indication that the Veteran's scar caused limited motion. The Veteran does not contend otherwise. See 38 C.F.R. § 4.118, DCs 7800-7805. Therefore, a separate rating for the Veteran's residual scar associated with his service-connected traumatic bifrontal headaches is not warranted. Based on foregoing, the criteria for rating in excess of 30 percent for the Veteran's service-connected headaches have not been met for the period on appeal. 38 C.F.R. § 4.124a, DC 8100. Further, there are no alternative diagnostic codes under which the Veteran's headaches may be analogously rated. See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). REASONS FOR REMAND 2. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran contends that he has hearing loss as a result of his active military service. The Veteran was afforded a VA examination for his claimed haring loss in May 2016; however, the examiner indicated that the audio test was invalid due to inconsistencies even with reinstruction, and audiometric reevaluation was recommended to establish true thresholds for rating. The examiner further noted that the use of the speech discrimination score was not appropriate for this Veteran because of language difficulties, cognitive problems, inconsistent speech discrimination scores, etc., that made combined use of puretone average and speech discrimination scores inappropriate. The examiner indicated that no diagnosis could be provided because there is no pathology to render a diagnosis. In light of the examiner's inability to obtain valid audio test results, and the examiner's recommendation to reevaluate the Veteran to establish the true thresholds for rating, as well as the examiner's inability to provide a diagnosis or etiology opinion, the Board finds that a remand to afford the Veteran another opportunity to attend a VA examination is warranted. In making this determination, however, the Veteran is hereby advised that the duty to assist is not a one-way street; he is responsible to cooperate in the development of his case, which includes cooperating in authorized examinations. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); 38 C.F.R. § 3.326 (a). Thus, the Veteran is hereby advised that failure to cooperate during a scheduled examination, impacting the validity of the test results, may result in the denial of his claim. See 38 C.F.R. §§ 3.158, 3.655. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of his claimed hearing loss disability. The claims file, including a copy of this remand, must be provided to the examiner in conjunction with the requested opinion. (a.) The examiner should opine as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's bilateral hearing loss began during active service, manifested within one year after discharge, or is otherwise related to an in-service injury, event, or disease. (Continued on the next page) (b.) A comprehensive rationale must be provided for any opinion rendered. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why the opinion cannot be made without resorting to speculation. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Hite, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.